As many people sit on the edge of their seats anticipating the announcement of an approved COVID-19 vaccine, many people are preparing to refuse to take it. This poses a number of challenges, including the potential some employers might choose to introduce mandatory COVID-19 vaccination requirements. The question is, is it legal for employers to have COVID-19 vaccine requirements and if so, can employees refuse without putting their jobs at risk? Here we look at what the introduction of a COVID-19 vaccine and mandatory COVID-19 vaccine requirements could mean to the workforce.
Mixed Response to a COVID-19 Vaccine
According to a September survey conducted by Pew Research Center, only 51% of U.S. adults say they would “probably” or “definitely” get a COVID-19 vaccine. This is a 21% drop from what people were saying back in May. This might be because three in four respondents felt it was “somewhat” or “very” likely a COVID-19 vaccine would be available before it was confirmed to be safe or effective.
Mandating COVID-19 Vaccines
There are mixed feelings from industry to industry on whether COVID-19 vaccine requirements would be welcome. It’s also unclear if COVID-19 requirements would even be legal. For example, the head of the American Federation of Teachers said the union would be in support of having teachers take a COVID-19 vaccine. However, that is only if the COVID-19 vaccine was approved by the FDA.
They view COVID-19 vaccine requirements as being no different from any other mandated vaccines required by schools. As well, many retailers feel mandated COVID-19 vaccine requirements might be the best way to protect both their employees and customers from the virus. It could limit transmissions for people both shopping and on the job.
The real question here is can employers require their employees to take a COVID-19 vaccine for a person to be allowed to work? Many workers might be surprised the answer is yes, COVID-19 vaccine requirements can be mandated by employers. A privately-owned business can add policies for mandatory COVID-19 vaccine requirements. Constitutional restrictions that would stop the government from mandating COVID-19 vaccine requirements do not apply to private employers. That means that should you choose to refuse to take the COVID-19 vaccine and your company has mandated it as part of their work policy, it could prove difficult for you to legally refuse without the help of a lawyer.
While a policy can be mandated for employee COVID-19 vaccine requirements, it cannot apply to everyone. Employees with underlying medical conditions or where religious exemptions might apply would have to be exempt. This forces companies to remain compliant with anti-discrimination laws. It also provides an easy way for employees to find a legal route out with the help of a lawyer.
Legal Implications Under ADA
So, can employers require their employees to take a COVID-19 vaccine without interfering with their obligations under the Americans with Disabilities Act (ADA)? This question takes things one step further as workers with legitimate medical concerns should be able to seek exclusion based on the Americans with Disabilities Act. Employers must provide reasonable accommodations to those with disabilities or face the wrath of their employee’s lawyer.
They cannot place “undue hardship” on employees with disabilities that cause significant expense or difficulty. It also applies to people with “sincerely held” religious beliefs who could use their beliefs as a basis to refuse to adhere to COVID-19 vaccine requirements. So well employers can mandate COVID-19 vaccine requirements for their employees, in these cases, it would not be legal to refuse to provide proper accommodations based on the ADA. A lawyer can easily secure your rights in these cases.
Firing Due to COVID-19 Vaccine Non-compliance
The Equal Employment Opportunity Commission is watching how things develop should the FDA approve a COVID-19 vaccine. They want to ensure employers follow their obligations under the ADA including the introduction of policies mandating COVID-19 vaccine requirements. While this is new terrain, it would be interesting to see if an employer would actually fire an employee who does not comply with COVID-19 vaccine requirements. If there isn’t a reasonable accommodation requested, firing could be legal.
A lawyer could help employees who find themselves in this position. In some cases, certain industry unions could also act to protect employees from following the policies with COVID-19 vaccine requirements. Negotiations will definitely be required for a company wishing to introduce a mandatory policy such as COVID-19 vaccine requirements. However, since it could create a safety issue, unions might not interfere with such a policy without major member outcry.
Challenging COVID-19 Vaccine Requirements
No doubt it is just a matter of time before such COVID-19 vaccine requirements are challenged in court. This could see employees with some wins since this is new territory for the courts. If an employee’s lawyer can prove it is unsafe for the employee to take the COVID-19 vaccine based on the fact there is not enough proof to show it is effective or safe, more judges are likely to take the side of the employee.
Voluntary COVID-19 Vaccines
For the most part, companies are best starting off with a fair voluntary-encouragement route, in hand with offering free onsite COVID-19 vaccines. As well, in some workplaces, a mandate might make more sense such as those in the healthcare or long-term care industries. These workers already require influenza shots for example. Other industries that would increase the risk for spreading the virus might include meatpacking plants, schools, convention centers, airlines, etc. Companies would need to do a cost-benefit analysis to determine what works best for them. Employees on the other hand would need to weigh their fears of a COVID-19 vaccine with legal advice from a lawyer to decide if they wish to refuse.
Mandatory COVID-19 Vaccine Requirements Less Likely
The bottom line is that the majority of employers will want to avoid the conflict mandatory COVID-19 vaccine requirements will cause. By encouraging COVID-19 vaccines and making them readily available they might get better results. However, employees should be aware they do have rights and when in doubt they can consult a lawyer to address their concerns with COVID-19 vaccine requirements.
Can an Employer Make You Vaccinate?
Many workers might be surprised the answer is yes, COVID-19 vaccine requirements can be mandated by employers.
Who Would Have a Case if Fired for Not Vaccinating?
Only those with a provable medical condition would have a viable reason to apply for Wrongful Termination.
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Katie is a marketing and promotions associate with the law firm Dyer, Garofalo, Mann, and Schultz. She creates graphics, videos, and promotional online events with the firm.